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Flashcards in Judicial review Deck (36):

Grounds of judicial review

Illegality, irrationality, procedural impropriety
Must show at least one of these to raise a claim.


What is illegality?

Decision maker must understand the law that regulates his decision making power and must give effect to it.


What is irrationality?

‘Wednesbury unreasonableness’ - a decision that is so outrageous in its defiance of logic or accepted moral standards that no sensible person could have arrived at.


What is procedural impropriety?

decision-maker has failed to follow procedures laid down by legislation


Authority for what judicial review can do

P.cane, administrative law


Points to consider when a judicial review action is brought forward for breach of a convention right under the human rights act 1998.

Claim must be brought against a public body
Claimant must be a victim of the unlawful act
Claimant must show there has been a breach of one of the convention rights
The court can grant any remedy that it normally has the power to grant and grant damages.


overview of judicial review:
what do you need?
what must you challenge on the basis of?
and what test must it satisfy?

you need sufficient interest for judicial review
must be able to challenge on the grounds of either illegality, procedural impropriety or irrationality.
decision made by someone to whom a power has been delegated.


give an example of a case that a party had no interest to sue

scottish old peoples welfare council, petitioners 1987


what act changed the court's way of judicial review?

courts reform (Scotland) act 2014 s89
changed to being allowed 3 months to bring a claim
must also have sufficient interest


in England, it was that you could only bring an action if it was a public body and not a private body but what case changed this? can you remember what was said and who said it?

in West v Secretary of state for Scotland, it was shown that Jurisdiction does not depend upon a distinction between ‘public’ and ‘private’ law.

"The competency of the application does not depend upon any distinction between public law and private law" - Lord Hope


describe the tripartite test in 3 steps

1. person taking the decision( being challenged)
2. person or body granting power to the decision maker
3. person seeking review and/or remedy (affected party)


where was the tripartite relationship demonstrated? (golf club case)

Crocket v Tantallon Golf clob


remedies of judicial review

quashing orders
prohibitory orders


what case demonstrated the separation of powers in judicial review?

R v Cambridge Health Authority, not the court's job to look at the reasons for the decision but rather the lawfulness of the decision


quashing order

shows that the decision was never valid and was always invalid so was never law. quashes the decision after it has happened.


prohibitory orders

preventing an unlawful act from taking place where such action is planned



preventing an unlawful act from taking place- can be done in Ordinary- allows for a temporary injunction



statement about a legal matter which has no legal effect but is likely to be respected via ministers.-ordinary-


to go on like nothing has happened

collateral challenges to administrative measures


(illegality) authorization

the public body does not have authority to carry out tasks e.g. adding in wash baths.


(illegality) errors of law and of fact

the decision maker may get an area of law wrong

area of fact, the decision maker may get the facts of a dispute wrong


(illegality) failure to exercise discretion: delegation

a delegate is not allowed to delegate


(illegality) failure to exercise discretion: deference

a delegate cannot be bound by views of others


(illegality) failure to exercise discretion: policy

a decision maker may have a policy but must remain willing to decide each case on its merits.


(illegality) failure to exercise discretion (abuse): proper/improper purposes

powers may only be used for the purposes for which they were given


(illegality) failure to exercise discretion (abuse): relevant/improper factors

decision makers must take into account all relevant factors and no irrelevant factors.


(procedural impropritory) compliance with procedure: mandatory

mandatory: where if procedure is not followed then becomes invalid.


(procedural impropritory) compliance with procedure: advisory

advisory: where if a technical or trivial requirement is not followed then may not result in being held invalid and may still be lawful.


(procedural impropritory) procedural fairness and natural justice (rule against bias): direct bias

direct bias: improper intrest in outcome of the case


(procedural impropritory) procedural fairness and natural justice (rule against bias): indirect bias

indirect bias: does it look like there may be bias? e.g. family member of judge.


(procedural impropritory) procedural fairness and natural justice (the fair hearing rule): list of rights

list: people must have a right to be heard if the decision strongly affects them.

must be told if an action is raised against them before trial.

must be allowed to make their own argument in the court.

judge has a duty to give reasons why a judgement is made.


(irrationality) Wednesbury Test: strict application

Difficult to satisfy – not helpful for claimants seeking to challenge public authorities’ decision


(irrationality) Wednesbury Test: Lenient Application

The more significant the issue at stake, the greater the courts’ scrutiny


(proportionality): what is it?

court to consider whether the extent of the interference is greater than is reasonably necessary to achieve the legitimate aim.



R (on the application of Daly) v Secretary of State for the Home Department.
prison officers searched the cells of inmates and legal documents with their solicitors were exposed.
held: unreasonable and could carry out this procedure a different way.

Whether the measure taken are rationally connected to the legitimate aim
Whether the measures taken are of no more than is necessary to achieve the legitimate aim


proportionality test only applies when?

Proportionality test applies only where EU law and Human Rights Act 1998 [ECHR] engaged